The fact, as stated by Chief Justice Ruffin, that he is necessarily and at all times using the water running through his land, in so far at least as the water imparts fertility to the soil and enhances its value, is a sufficient user to entitle him to claim that he shall not be deprived of it."

The learned judge then proceeds to discuss at length the effect of certain territorial legislation, but this portion of his opinion I omit, since it has no bearing upon any general questions. The conclusion of his opinion touches upon a subject of great interest in the state of California, and I shall therefore quote it at length, (pages 284-287:) "It is said that the rule which is adopted in this case may be the rule of the common law, but that it is not applicable to our situation, and therefore should not be followed. We have shown that a stream is an incident of the land through which it naturally flows; that it is, in fact, a part of the soil itself; that the right to have it continue to flow is as sacred a right as that to the soil itself; that, being so an incident of the land, it necessarily passes by conveyance of the land. Such being the law, we are unable to understand how or by what authority this court can say the patent of the United States does not convey as complete and perfect a title to its patentee in the state of Nevada as it does elsewhere. There is no rule within our knowledge which would justify a court, independent of any common-law principle, in holding that the appellant Haines should not have the benefits of a stream of water which the paramount proprietor of the soil grants to him by its letters patent. It might as well be said that the courts can deprive him of the land itself by holding that it did not pass by the patent, as to rule so respecting that which is universally admitted and held to be an inseparable and valuable incident to it. But perhaps it is an unwarranted conclusion drawn from our opinion in this case, namely, that the water of a stream could not be used by the riparian proprietor for irrigation, which is thought to be inappli

cable to the condition of things in this state. To this it may be answered-First, that no such decision has been made, nor has anything of the kind been intimated; second, whatever the common-law rule may be, whether applicable or not, it is made the law of this state, and is as binding on us as is any statute ever adopted by the legislature; and therefore we have no more power to annul or repudiate it than we have to disregard a legislative act. The first legislature of the territory of Nevada (see St. 1861, p. 1) declared that 'the common law of England, so far as it is not repugnant to or inconsistent with the constitution or laws of the United States, or the laws of the territory of Nevada, shall be the rule of decision in all courts of this territory. Our state constitution adopted this by section 2 of the schedule. Hence, although the common law might, in the opinion of judges, be inapplicable, still, if not in conflict with the constitution or laws of the United States, or the constitution or laws of Nevada, it must nevertheless be enforced. But suppose that decision should necessitate the adoption of the common law respecting the manner in which running water may be used by those having the right to it; although it may operate unjustly in some cases, still, as a general rule, none more just and reasonable can be adopted for this state. It is a rule which gives the greatest right to the greatest number, authorizing each to make a reasonable use of it, providing he does no injury to the others equally entitled to it with himself; while the rule of prior appropriation would authorize the first person who might choose to make use of or divert a stream, to use or even waste the whole, to the utter ruin of others who might wish it. The common law does not, as seems to be claimed, deprive all of the' right to use, but, on the contrary, allows all riparian proprie-' tors to use it in any manner not incompatible with the rights of others. When it is said that a proprietor has the right to have al stream continue through his land, it is not intended to be said

that he has the right to all the water, for that would render the stream which belongs to all the proprietors of no use to any. What is meant is that no one can absolutely divert the whole stream, but must use it in such a manner as not to injure those below him. As the right is equal in each owner of the land, because naturally each owner can equally enjoy it, so one must exercise that right in himself without disturbing any other above or below in his natural advantages. Chief Justice Shaw says:1 The right of flowing water is now well settled to be a right incident to property in the land; it is a right publici juris, of such a character that while it is common and equal to all through whose land it runs, and no one can obstruct or divert it, yet, as one of the beneficial gifts of Providence, each proprietor has a right to a just and reasonable use of it as it passes through his land; and so long as it is not wholly obstructed or diverted, or no larger appropriation of the water running through it is made than a just and reasonable use, it cannot be said to be wrongful or injurious to a proprietor lower down, whose said just and reasonable use may often be a difficult question, depending on various circumstances. * * * It has sometimes been made a question whether a riparian proprietor can divert water from a running stream for purposes of irrigation. But that we think an abstract question, which cannot be answered either in the affirmative or negative as a rule applicable to all cases. That a portion of the water of a stream may be used for the purpose of irrigating land, we think is well established as one of the rights of the proprietor of the soil along or through which it passes. Yet a proprietor cannot, under color of that right, or for the actual purpose of irrigating his own land, wholly obstruct or divert the water-course, or take such an unreasonable quantity of water, or make such unreasonable use of it, as to deprive other proprietors of the substantial benefits which they might derive 1 Elliot v. Fitchburg R. R., 10 Cush. 193.

from it if not diverted or used unreasonably.' This is the doctrine uniformly recognized both in England and in the United States, and is the necessary result of the general principles universally recognized respecting running water. Whether the right to irrigate land can in this state be considered a 'natural want,' is a point in nowise involved in this case, and which, therefore, does not call for decision." In conclusion, the learned judge shows that the early decisions in Nevada and a series of cases in California have no bearing whatever upon the questions concerning riparian rights, since they related exclusively to the appropriation of water of streams wholly public, by parties who were not riparian proprietors. It has already been shown that the California courts make the same distinction. As throwing light upon the discussion, and as supporting his positions, the chief justice cites a long list of cases, which for purposes of reference I have thought proper to place in the foot-note.1

§ 120. Modifications on doctrine of Van Sickle v. Haines.

The decision in Van Sickle v. Haines is subject to some modification, in respect to one of its conclusions, by the legislation of congress. The court expressly held that a patent granted by the United States to a private person, conveying the full legal title to a tract of what had been public land situated on the

1 Mason v. Hill, 3 Barn. & Adol. 305; 5 Barn. & Adol. 1; Sampson v. Hoddinott, 1 C. B. (N. S.) 611; Embrey v. Owen, 6 Exch. 353; Wright v. Howard, 1 Sim. & S. 190; Davis v. Getchell, 50 Me. 602; Heath v. Williams, 25 Me. 209; Lick v. Madden, 25 Cal. 209; Blanchard v. Baker, 8 Greenl. 253; Davis v. Fuller, 12 Vt. 178; Snow v. Parsons, 28 Vt. 459; Tillotson v. Smith, 32 N. H. 90; Gerrish v. New Market

Manuf'g Co., 30 N. H. 478; Ingraham v. Hutchinson, 2 Conn. 584; Parker v. Hotchkiss, 25 Conn. 321; Wadsworth v. Tillotson, 15 Conn. 366; King v. Tiffany, 9 Conn. 162; Elliot v. Fitchburg R. R., 10 Cush. 191; Tyler v. Wilkinson, 4 Mason, 397; Webb v. Portland Manuf'g Co., 3 Sum. 189; Gardner v. Village of Newburgh, 2 Johns. Ch. 163; Ex parte Jennings, 6 Cow. 518; Canal Appraisers v. People. 17 Wend.

bank of a stream, although all the rest of the land on its banks was still public, ipso facto, and necessarily, so far as the patentee's riparian rights to the stream were concerned, cut off and annulled all rights to use the waters of the same stream as a public stream acquired by prior appropriation, and held by parties who were not private riparian proprietors. The reasons for the conclusion were that the appropriation of the waters of streams running over the public lands was wholly permissive; the right of the appropriator could never become complete against the United States by adverse use, but it was a new license or privilege, subject to be revoked and abrogated at any time by the United States; and that a patent, by which the full legal title of the United States, with all of its incidents, was conveyed to the patentee, necessarily clothed such patentee with all rights over the land which had belonged to the United States, and conveyed to him the land entirely free from all claims to the water of the stream growing out of the prior appropriation and uses. On principle, and in the absence of contrary legislation, the correctness of this ruling cannot be doubted. It has, however, been modified within certain limits by a statute of congress referred to twice in a previous chapter. This statute provides, in substance, that the waters of public streams may be appropriated, under local customs and laws, for various purposes connected with mining; and that, when such appropriations have been made from the waters of a public stream, patents subsequently issued by the United States to private persons shall be subject to the rights of the appropriator, and conditions

570; 5 Wend. 423; Rogers v. Jones,

1 Wend. 237; People v. Canal Appraisers, 13 Wend. 355; Crooker v. Bragg, 10 Wend. 260; Arnold v. Foot, 12 Wend. 330; Commissioners v. Kempshall, 26 Wend. 404; Corning v. Troy Iron-Works, 34 Barb.

486; 40 N. Y. 204; Campbell v. Smith, 3 Halst. 140; Plumleigh v. Dawson, 1 Gilman, 544; Pugh v. Wheeler, 2 Dev. & B. 50; Board of Trustees v. Haven, 11 Ill. 554: Moffett v. Brewer, 1 Greene, (Iowa,) 348.